SHALIAR Versus SAID RAZIQ
HAIDER ALI KHAN, J.--- Through the instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have sought the following relief:--
"On acceptance of this writ petition the impugned judgments and orders of respondents Nos.4, 6 and 7 be declared without lawful authority and of no legal effect and the application of the respondents for partition may kindly be dismissed with cost throughout."
2. Precise and relevant facts arising from the instant petition are that on 16.06.2010, the private respondents had filed an application before the Deputy District Officer (Revenue), Warray, District Dir Upper, against the petitioners, sought therein partition of the landed properties fully described in the heading of the said partition application.
3. The learned D.D.O.R(J) procured the attendance of petitioners who submitted their written reply, wherein, they asserted that the lands in question have already been partitioned with the help of Shahi Mulk Khan and Ali Bahadar by the parties, however, the village Shamilati joint property with Quom is not partitioned.
The learned DDOR(J) vide order dated 16.03.2011 turned down the assertion of petitioners regarding the previous partition amongst the parties and held that as settlement in the area has not been carried out so far, therefore, this question cannot be resolved without recording the pro and contra evidence of the parties and thereafter the Court can decide the lis on merits.
Felt aggrieved, the petitioners challenged the aforementioned order in appeal before the District Collector, Dir upper, which was turned down vide order dated 29.09.2001, wherein, it was observed that once the parties have partitioned the lands in question in their private capacity as per custom "Riwaj" of the area, however, there may be some variations, therefore, directed the Tehsildar Warrai District Dir upper to make the partition in accordance with law.
The petitioners further challenged the above referred orders before the learned Additional Commissioner, Malakand Division at Saidu Sharif, Swat. The appeal of petitioners was accepted vide order dated 02.04.2012, whereby the orders of D.D,O.R(J) as well as D.O.R. Dir upper were set aside and the partition application of the respondents was dismissed. Which order is reproduced herein below for convenience sake:--
The respondents assailed the same in revision petition before the learned Senior Member Board of Revenue, Khyber Pakhtunkhwa, at Peshawar, the same was allowed and the case was remanded to the learned Additional Assistant Commissioner, Warrai, Dir Upper, wherein, it was observed that a local commission in the case be appointed to visit the spot, record evidence and prepare a comprehensive report keeping in view the factual position and "Riwaj" of the locality, thereafter, the learned Additional Assistant Commissioner shall decide the case afresh strictly on merits by keeping in view the factual position as ascertained in the report of commission, hence the instant writ petition.
4. Arguments heard and record perused.
5. Perusal of the record would reveal that the controversy amongst the parties is that though the parties have privately partitioned their joint landed properties, however, the respondents seek its official partition to authenticate the same through the officials of revenue hierarchy so as to avoid future complications because, no settlement has been carried out in the area.
The petitioners opposing the official partition on the ground that they have already carried out the private partition by hiring the services of two local Patwaris namely Ali Bahadar and Shahi Mulk Khan with the concurrence of the parties which has been given practical effect.
It appears from the record that despite the fact that private partition has been carried out between the parties, but still the dispute has not been resolved which also dragged them through the criminal dispute in the shape of complaint filed by the petitioners against the respondents under section 427, P.P.C., wherein the respondents Nos.1 and 2 were even awarded conviction.
In the circumstances, the impugned order/judgment of the learned Member Board of Revenue, Khyber Pakhtunkhwa, Peshawar seems well reasoned and in accordance with the law. Hence, there is no such embargo on the official partition under the law, however, this will root out the main cause and would resolve the same controversy between the parties once for all. Reliance is placed on the judgment rendered by this Court in Writ Petition No.781-P/2013 and the relevant portion whereof is reproduced herein below for convenience sake:--
"
17. Though the learned Member Board of Revenue set aside the said order and remanded the case to the trial Court for fresh partition in presence of the parties but it is not enough. Being Apex fora of revenue hierarchy, he should issue direction to decide the partition proceedings according to mode and manner provided under the relevant law and rules, as discussed in para-15 of the judgment.
18. Before parting with this judgment, this Court takes an opportunity to observe that the Senior Member Board of Revenue shall issue directions to all the Revenue Officers especially to all the Collectors in the province that before issuance of any direction in partition suit, trial Court shall make inquiry in judicial manner and further the procedure provided in chapter-18 of the Land Record Manual. If necessary, appoint commission (revenue officer) not below the rank of Assistant Collector 2nd Grade to conduct the inquiry and proceedings."
As such we found no illegality, material irregularity or misapplication of law in the impugned orders which may call for interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
6. For the reasons stated above, the instant writ petition stands dismissed, being bereft of merits. The Courts of Revenue hierarchy, are directed to conduct themselves in accordance with the above observations.
ZC/304/P Petition dismissed.